Nebraska’s Mandatory Newborn Testing Law upheld

A Couple Wanted a Blood- Test Exemption for Their Daughter on Religious Grounds.

LINCOLN — Twenty-eight babies last year may have been spared disability and even death thanks to a law upheld Friday by the Nebraska Supreme Court.

In a unanimous ruling, the court said the state’s interest in the health and safety of children trumps an Omaha couple’s religious objections to the state law requiring blood tests on newborns.

The decision upheld a lower court’s order that Josue and Mary Anaya allow metabolic testing of their daughter, Rosa Ariel Anaya.

The Supreme Court also rejected arguments that the testing violated the Anayas’ parental rights.

“The health and safety of the child are of particular concern, as are the potential social burdens created by children who are not identified and treated,” wrote Judge John Wright.

Nebraska law requires metabolic testing of all newborns within 48 hours of birth or, in cases of babies not born at a hospital, within 48 hours of registration of the birth.

The tests, which involve pricking a baby’s heel and drawing about five drops of blood, are used to screen for a variety of disorders, including phenylketonuria, biotinidase deficiency and primary hypothyroidism. Unless caught early and treated, the disorders can lead to mental retardation, physical disabilities and even death.

Julie Miller, who oversees the testing program for the State Health and Human Services System, said the tests discovered metabolic disorders in 28 of about 26,000 Nebraska babies born in 2004.

The Douglas County Attorney’s Office sued the Anayas when they did not get Rosa tested after she was born at home July 11, 2003. The couple argued that their personal religious beliefs prohibited the drawing of blood.

The Anayas are ministers and administrators of the Mission for All Nations food and clothing pantry. In a phone interview, Mary Anaya said the court’s ruling was disappointing. She said the couple would have to contact their lawyer to decide their next step.

Tim Butz, executive director of the American Civil Liberties Union of Nebraska, said the ruling placed the Anayas in the unfortunate situation of either going against their religious beliefs or going to jail.

ACLU Nebraska filed a friend of-the-court brief in support of the Anayas. The organization also has a case pending in U.S. District Court on behalf of a Saunders County couple who objected, based on their Church of Scientology beliefs, to the requirement that testing be done within 48 hours.

On the other side, Rita Swan, president of the group Children’s Healthcare is a Legal Duty, said she was thrilled by Friday’s ruling. The group, founded in 1983, focuses on child abuse and neglect based on religious and cultural traditions. It filed a friend of-the-court brief in support of the Nebraska law.

The Anaya case is the first in which an appeals court considered whether religious beliefs exempt parents from having their children tested, Swan said.

“This is a wonderful, wonderful victory for children,” she said. “The child’s welfare is just a lot more important than the parents’ right to practice religion.”

All 50 states require newborn screening. Nebraska is one of four that do not allow parents to opt out based on religion. The others are Montana, Michigan and South Dakota.

Former State Sen. Curt Bromm of Wahoo introduced a bill in 2003 that would have created a religious exemption, but the bill did not pass.

Nebraska first mandated testing for phenylketonuria, or PKU, in 1967. Other screenings have been added as tests and treatments became available, Miller said.

The state requires screening for six disorders. Tests for another 30 are optional.